Attorney's Fees in Divorce Cases Under the Illinois Marriage and Dissolution of Marriage Act ("IMDMA")
WHO PAYS ATTORNEY'S FEES IN DIVORCE CASES?
THE GENERAL RULE
The general rule in divorce litigation is that attorney fees are generally the responsibility of the party who incurred them. See In re Marriage of Hasabnis, 322 Ill.App.3d 582, 749 N.E.2d 448, 461, 255 Ill.Dec. 347 (1st Dist.2001). This means that either spouse can hire any attorney (or attorneys) they choose, but will likely be ultimately responsible for paying those fees. Moreover, even if a party receives money for interim attorney's fees as discussed below, those fees may come out of that party's final property settlement. Therefore, there is not necessarily a perverse incentive to hire the most expensive attorney on the hope that the other spouse will end up paying the bill.
Interim fees are attorneys fees for work that has already occurred or is likely to occur in the future. A party can seek such interim fees during the litigation by filing a petition with the Court. These fees can be sought either during a divorce, a post-divorce matter, or an appeal. These interim fees are allowed for two reasons. First, the law likens marriage to a partnership, and the cost of dissolving a partnership should be born by the partnership, not the partners. Second, and more importantly, to equalize any disadvantage due to a disparity in financial resources as between the parties.
A petition for interim fees can be filed at any time after the filing of the initial petition so long as the court has jurisdiction over the matter. Hearings on such petitions are meant to be summary in nature and non-evidentiary. The Court will consider factors such as the income and property of each party, the needs of each party, earning capacity, standard of living, health impairments, the complexity of the issues, among others. Further, an award of interim fees has no bearing on how the final allocation of attorneys fees will be determined, as discussed below. In a sense, even if a party receives an interim award of attorney's fees from their spouse, it will likely come out of the property they receive at the end of the divorce.
CONTRIBUTION TO FINAL FEES
At the end of the case, a party can file a petition requiring that the other spouse pay, or contribute to, the attorney's fees incurred during the litigation. A party can only seek contribution to their fees if they are unable to pay such fees themselves and the other party is able to do so. Moreover, the court makes its decision based on the same factors as division of marital property and maintenance, which includes the value of property assigned to each spouse, the duration of the marriage, the economic circumstances of each party, the award of marital home, obligations or rights from prior marriages, pre-nuptial agreements, the income power of each party, maintenance, future earning capacity, and tax consequences.
If the court determines that such fees should be awarded, the court will only award an amount it deems "reasonable". This means that the fees charged by the requesting party's attorneys are not excessive. "Reasonableness" requires examining a variety of factors, including the time and labor required, the novelty and difficulty of the questions involved, the customary fees for such services, time limitations imposed by the representation, and the experience, reputation, and ability of the attorney performing services. A petition on contribution to final fees requires a full evidentiary hearing or trial, and will require the attorney to provide a full accounting of his or her time. Further, an expert witness is required to testify as to the reasonableness of the fees charged and requested.